LexHINDUSTAN COCA COLA BEYERAGE (P) LTD. versus UNION OF INDIA AND ORS.
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[2014] 7 S.C.R. 632
HINDUSTAN COCA COLA BEYERAGE {P) LTD.
V.
UNION OF INDIA AND ORS.
(Civil Appeal No. 3380 OF 2010)
SEPTEMBER 04, 2014
[DIPAK MISRA AND ABHAY MANOHAR SAPRE, JJ.]
Central Excise Act, 1944: s.35 - Demand - Stay of- Held:
If an order of recovery is made by. Excise department then it
C
is not appropriate to allow assessee to enjoy the benefit of
stay of recovery on the basis of a bank guarantee.
Constitution of India, 1950: Article 226 - Writ jurisdiction
- Scope of - Held: The factual aspects cannot be adjudged
D or adjudicated by High Court u!Article 226 of the Constitution.
Pursuant to certain Notifications, few benefits were
availed of by the assessee. The Finance Act, 2003 was
brought into force and by virtue of Section 153 of the Act,
certain Notifications were amended with retrospective
E effect from 8.7.11999 i.e. the date of original Notification.
After the amendment came into force, the Assistant
Commissioner referred to the amendment and the
notifications and passed order that the entire amount
F sanctioned with retrospective effect is required to be
recovered from the appellant. The appellant filed a writ
petition before the High Court on the ground that without
affording an opportunity of hearing to the appellant and
without issuance of the notice, the Assistant
G Commissioner had passed an order of recovery which
was absolutely impermissible. The High Court adverted
to the merits olf the case and dismissed the writ petition.
Hence the appeal .
. Partly allowing the appeal, the Court
H
632
HINDUSTAN COCA COLA BEVERAGE (P) LTD. v. 633
UNION OF INDIA
HELD: 1. The first ground taken by the assessee was A
whether the appellant-assessee was entitled to be given
notice to show cause before proceeding for recovery in
view of the language employed under Section 153(4) of
the Finance Act,
200~. The assessee had not
demonstrably argued this ground and addressed the lis B
on merits before the High Court. Therefore, the said
question has been left open. [Para 9] [641-E•F; 642-F-G]
2. The second question was whether the High Court
was justified in addressing the lis on merits when series C
of factual aspects were involved. The High Court should
not have entered into the factual score to decline the relief
to the appellants. It can only be adjudicated upon with
reference to the documents on record. The documents
mean the transactions, quantum of CENVAT availed of,
the amount that was taken as refund by paying from the D
P.L.A. and further not availing refund of CENVAT credit
at any point of time. The said aspect are in the realm of
facts which could not have been adjudged or adjudicated
by the High Court under Article 226 of the Constitution
as the order of recovery was challenged on the. ground E
that no notice was issued to the appellant and that it was
not liable to pay in the obtaining factual matrix. [Para 10]
[642-G-H; 643-A-C]
3. There is no cavil over the fact that an appeal lies F
under Section 35 of the Central Excise Act, 1944 to the
Commissioner (Appeals) who can address both the
issues relating to facts and law keeping in view the
applicability ·of the relevant notifications. The assessee-
appellant had furnished a bank _guarantee amounting to G
Rs.2,20,18,124/- for obtaining an .t>rder of stay. It would not
be appropriate to give an oppo~unity to the appellan~ to
prefer statutory appeals and allow it to enjoy the benefit
of stay of recovery on the basis of a bank guarantee.
Therefore, the assessee is directed to deposit Rs.2.5 H
634
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A crores before the adjudicating authority within six weeks
and after the salid deposit is made and the receipt
obtained, the appeal would be entertained within the said
period. On an appeal being filed, the Commissioner
(Appeals) shall deal with the matter on merits.
B Considering the amount in question in various appeals
it is directed that in case the bank guarantees furnished
by the assessees have been encashed no deposit shall
be made. If the bank guarantees have not yet been
encashed the amount as mentioned plus rupees five
C lakhs shall be deposited within the stipulated time. It is
directed that after deposit of the said amount, the bank
guarantees furnished in favour of the jurisdictional
Commissioner shall be returned to the assessee-
appellants. [Paras 11 and 12] [643-C-F; 644-D-F]
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